Professional Documents
Culture Documents
EXHIBIT B
MOTION FOR LEAVE TO FILE AMICUS CURAE BRIEF IN RESPONSE TO WALMART STORES
EAST LPS MOTION TO EXPEDITE DECISION ON PETITION FOR WRIT OF CERTIORARI
TABLE OF CONTENTS
Table of Authorities
iii
Summary of Argument
Arguments
Truth in Government
11
12
Conclusion
Due Process
18
Certificate of Service .
19
Certificate of Compliance
20
Appendix .
pp 1-21
Exhibits .
D-G
ii
TABLE OF AUTHORITIES
Cases
City of Deerfield Beach vs. Valiant
.
419 So. 2nd 624 (Fla. 1982)
Coral Reef Nurseries, Inc. v. Babcock Co. .
410 So.2d 648, 652 (Fla. 3d DCA 1982)
Metropolitan Dade County Board of County
Commissioners v. Rockmatt Corporation
231 So.2d at 44. (Fla. 3d DCA 1970)
Other Authorities
The Miami-Dade County Home Rule Charter
Citizens Bill of Rights, (A) (2)
.
.
Citizens Bill of Rights, (A) (8)
.
.
The United States Constitution
Bill of Rights 5th amendment
.
.
14th Amendment
.
.
iii
4, 18
3, 9, 13
13
2, 9 , 11
2, 3, 18
.
.
.
.
.
.
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Comes now humbly before this court Grant Stern, a natural person Pro Se as
Amicus Curae, pursuant to the Florida Rule of Appellate Procedure 9.370(a)(b)
and 9.210(b), to brief this body Amicus Curae with his expertise in all aspects of
realty, real estate matters and more particularly in the Zoning and Ordinances
related to Midtown Miami as Amicus Curae
Identity of Amicus Curae
Amicus Curae Stern (Amicus) is a resident of Miami's nearby Edgewater
neighborhood who maintains an office Mile from the proposed location of
Walmart at 3055 N Miami Avenue and whose residence lies of one mile from
same location. Amicus has spent 3 and years fact checking Walmarts
application, whereby he has developed a certain level of expertise regarding the
zoning rules and regulations at question in this case worth sharing with the
honorable court.
Amicus Curaes Interest in Matters At Hand
Amicus has further interest in this case in his frequent public hearing testimony to
the City of Miami Commission on this matter, particularly on November 20th,
2014 which public hearing testimony was included in Petitioners Amended Brief
at Pages 18-19 whereupon Petitioners counsel noted that Movant was an
interested party. Neither Respondent disputed Petitioners counsels assertion of
http://www.miamiherald.com/news/local/community/miami-dade/midtown/article1939299.html
http://www.huffingtonpost.com/grant-stern/
court in Pfeffer I. Both Respondents Walmart and the City of Miami caused
their own current timing problems cited in their Motion to Expedite Findings by
fighting the definition of the word Total for 11 solid months. The well
established doctrine of administrative res judicata should have prevented them
from submitting a substantially similar plan for Commission review by their own
admission, or obtaining a new finding of fact by that body, with substantially the
same plan. Lastly, Respondents submitted and approved a plan containing a very
explicit Variance contrary to published ordinance, in direct contravention of the
only competent substantial evidence submitted, and without following established
parameters for evaluation of a Variance zoning application enumerated in Pfeffer
I at page 7 by this court.
Right to Public Hearing
The record clearly indicates that Respondents violated Petitioners rights under the
Dade County Home Rule Charter Citizens Bill of Rights (A)(8) during the
November 20th, 2014 meeting of the City of Miami Commission sitting in a
Quasi-Judicial capacity which states specifically: At any zoning or other hearing
in which review is exclusively by certiorari, a party or his counsel shall be
entitled to present his case or defense by oral or documentary evidence, to submit
VICE CHAIR HARDEMON: The public hearing has been closed. Right
now we're on a matter of discussion for the Commissioners to consider
whether they will vote yea or nay. Commissioners. No further -- I think the
question has been called.
COMMISSIONER SUAREZ: I think Francisco just -- you know, that was
actually the most poignant statement you made the whole entire tire.
VICE CHAIR HARDEMON: It was beautiful
Clearly, the commission was moved by the Planning Directors compelling mea
culpa, as expressly spoken into the record by both the presiding officer and
another commissioner who commented unbidden on the powerful nature of this
persuasive testimony to the Commission.
Ironically, the exact same situation arose in the prior hearing by the
Commission on November 21st, 2013, the record of which has been entered into
the proceedings of Pfeffer I and re-entered into the record of this case and whose
decision was quashed in Pfeffer I. The Chair of the 2014 meeting presided over
that 2013 hearing as Vice Chair at which time counsel for an objector entered
precisely the same claim on the record3 :
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Vice Chair Gort: There's a motion. There's a second. I think the Planning
director would like to make some statements.
Chair Sarnoff: I'm sorry; I was supposed to let you -- no? No? Mr. Garcia:
No, Commissioner, but --
Mr. Gibbs: Mr. Chairman, can -- I'd like to object for the record. Mr.
Garcia is going to speak. He will be speaking almost in surrebuttal. The
public hearing should be reopened after Mr. Garcia speaks -
hearing whose resolution is written at the time of notice, and whose approval to
be debated isnt submitted until the Saturday before the hearing, but AFTER the
notices have been sent.
To Wit, Counsel for the Respondents, City of Miami Attorney Victoria
Mendez announced prior to scheduling of the above described Commission
Hearing that any hearing would be limited in scope within Exhibit D, precisely
the opposite of a from scratch hearing.
This legal opinion was then further enumerated at the above referenced
City of Miami Commission Hearing on November 20th, 2014, when City
Attorney Victoria Mendez acting in her capacity as counsel to the Commission
failed to follow this courts mandate and advised the Commission as per
Petitioners Exhibit B 5-6:
MS. MENDEZ: Based on the ruling of the appellate division of the circuit court, the
case is back now before this Commission on the limited issue to consider the appeal
as it relates to the number of loading berths only. So the amount of loading berths.
So the...
CHAIRMAN GORT: They're appealing, because they want to see the five instead
of the three by the Judge?
CHAIRMAN GORT: They want to see the five instead of three. I don't understand,
the Judge says not five, but three, but they're appealing the Judge's decision, which
means they want five then?
MS. MENDEZ: Well, it's back here, because the Court has said to bring it back, but,
more importantly, I just want this Commission to know that the de novo hearing, so
the hearing from scratch that you're going to listen to, is only supposed to be on
whether there should be three berths or not.
CHAIRMAN GORT: Okay.
MS. MENDEZ: Nothing more, nothing less.
Miami-Dade County Home Rule Charter Citizens Bill of Rights (A) (2)4
entitles all Miami-Dade residents to accurate factual statements, and further
protects them from factual omissions.
Firstly, City of Miamis Planning Director made up a new definition of the
term berths in Petitioners Exhibit B 34-1 noting on the record:
loading berths in this context means that these are the sole spaces where
trucks or other delivery vehicles may station themselves so as to load and
unload merchandise. Because the number of loading berths is now three,
the area that was previously set aside for the other two loading berths now
function as additional space for staging areas to be used as appropriate, not
for loading.
This violated the Petitioners charter rights when their public official knowingly
testified of a novel definition, unsupported by any properly enacted ordinance,
then knowingly omitted the actual written definition of berths while correctly
citing the Chapter and Verse of where such definition properly is found.5
Truth in Government. No County or municipal official or employee shall knowingly furnish false information on any
public matter, nor knowingly omit significant facts when giving requested information to members of the public
5
Further details of the definition are enumerated in the section of this Brief entitled Res Judicata and
Substantive Matters and the definition may be found in City of Miami Ordinances, Article 11000, Section
2500 Definitions
Citizens Bill of Rights as enumerated at (A)(2) in the Miami-Dade County Home Rule Charter
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deviation to be considered within the process for a Major Use Special Permit as defined in Article 17 referent to
Miami Ordinance 11000
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The doctrine is applicable to rulings or decisions of administrative bodies (citation omitted), and to rulings of such
bodies dealing with zoning regulations unless it can be shown that since the earlier ruling thereon there has been a
substantial change of circumstances relating to the subject matter with which the ruling was concerned, sufficient to
prompt a different or contrary determination
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used for unloading of goods since theres over 25,000 sq. ft. of ground level retail
planned, whose stores would have no other method of supply, except this
screened area (created originally thusly especially to comply with district loading
standards), which would make impossible the citys enforcement of a no
loading policy behind closed doors in a private area - which at any rate the City
of Miami failed to condition in its permit as well.
The unpalatable alternative is, allowing future zoning applicants to simply
label away physical defects in their plans would allow someone to create a 40
loading bay warehouse in this district simply by pointing to the many areas and
defining them as bathing areas or athletics areas all of which are in fact an
area in which goods and products are moved on and off a vehicle, including the
stall or berth and the apron or maneuvering room incidental thereto. but
otherwise labeled on a plan. Such allowance of Variances would allow any
applicant to raise the intensity of land use in conjunction with a Class II Special
Permit application by simply bypassing the Variance process each time for a
secret administrative decision. This concurs with Petitioners Amended Petition
for Certiorari Page 22, standards (ii) and (iii) and constitutes by their lack of
competent evidence additionally, a further departure from the essential elements
of the law.
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Factual handouts distributed to each Commissioner and entered into the record
note, that there is a linear private park abutting the entire owned by the
Midtown Community Development District (Midtown CDD), which is a
sub-governmental agency which abuts the entire western boundary of Walmarts
proposed project. Evidence of the Midtown CDDs ownership, legal description
and position of the property were provided in the form of a print out from the
Miami-Dade County Property Tax Search15 of Folio 01-3125-078-0061 which is
classified as a Private Park16 and Common Area both of which meet the
definition of Open Space.
Walmarts current plans call for a second level parking garage entrance
which being vehicular is inaccessible by the sidewalk per district regulations.
This constitutes yet another illegal variance in Walmarts application which the
City of Miamis Planning Director has ignored and allowed to infect the
application for Class II Special Permit. For the same reason this court found in
favor of Petitioners in Pfeffer 1 at 7, Walmarts plan must fail in this court as
well. Lastly, neither Respondent presented, nor rebutted the competent
substantial evidence presented at the November 20th, 2014 Commission hearing.
15
16
http://www.miamidade.gov/propertysearch/index.html
To avoid any confusion Folio 01-3125-078-0061 has a legal description of BUENA VISTA WEST PB 161-78
T-21737 PORT OF TR F DESC BEG 474.75FTS & 398.07FTW OF NE COR OF TR F CONT S 88 DEG W 8.91FT N 01 DEG
W 437.76FT NELY AD 22.12FT S 01 DEG E 457.09FT TO POB
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Neither Respondents, nor commission did address the written and oral
claimsinfront of that body, claims of a serious variance from the district zoning
regulations, such lack of competent substantial evidence contravening objectors
factual presentations entered into the record fails to meet the standards of review
enumerated by Petitioners Amended Petition for Writ of Certiorari at Page 22
and further deprives the Petitioners of their Citizens Rights under Miami-Dade
County Home Rule Charter (A)(8) that The decision of any such agency, board,
department or authority must be based upon the facts in the record..
Conclusion
Based on the foregoing reasons and legal authority cited, certiorari is both
necessary and justified to quash the Citys denial of the appeal of the Class II
Special Permit, without further remand for action and further expressly bar
applicant from re-application within 12 months for substantially the same design
or permit hereafter under Section 1310, of Article 11000 of the City of Miamis
Municipal Ordinances from the date of this courts decision.
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CERTIFICATE OF SERVICE
I certify that a copy of this request was served by email on March 23rd,
2015 to: Assistant City Attorney, John A. Greco, Esq., 44 S.W. 2nd Avenue, Suite
945, Miami, Florida 33130 (law@miamigov.com; jagreco@miamigov.com) and
Richard J. Lydecker, Esq. and Joan Carlos Wizel, Esq., 1221 Brickell Avenue,
Floor 19, Miami, Florida 33131 (rl@lydeckerdiaz.com; jcw@lydeckerdiaz.com,
manny@lydeckerdiaz.com).
______________________________
Grant Stern, Pro Se
CERTIFICATE OF COMPLIANCE
This brief complies with the font requirements of Florida Rules of Appellate
Procedure. It was typed using Times New Roman 14-point font.
________________________________
Grant Stern, Pro Se
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